BIRENDRA KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether each and every provision of the Bihar and Orissa Jail Manual, 1927, is stricto sensu a justiciable statutory rule and with particular reference to rules 981 and 982 thereof- is the primal common question in this set of four cases necessitating this reference to the Full Bench. Assuming so, the subsidiary issue is whether the said R. 982 is mandatory or purely recommendatory. Equally at issue is the correctness of the Division Bench's decision in Chandeshwar Prasad Singh and others v. State of Bihar and others, (Criminal writ Jurn. Case No. 233 of 1982, disposed of on the 8th July, 1982).

(2.) The representative matrix of facts may be briefly noticed from Criminal Writ Jurisdiction case No. 257 of the 1985 (Birendra Kumar Singh and another v. State of Bihar). The two petitioners were convicted on the charge of premeditated murder under S. 302, I.P.C. and were sentenced to undergo rigorous imprisonment for life, and, at present, are lodged in the Central Jail, Patna. By virtue of Chapter XXXIV of the Bihar and Orissa Jail Manual (hereinafter called 'the Manual'), and, in particular, Rules 981 and 982 thereof, convicted prisoners are classified in three divisions, namely, Division I, Division II and all those prisoners who do not come within the purview of the same, as Division III. The convicted prisoners classified in Divisions I and II enjoy various privileges in their treatment within the Jails prescribed inter alia by Rules 1014 and 1015 of the Manual, which are not available to the rest. The petitioners filed a petition before the District Magistrate, Patna, purporting to be under the Rules of the Manual, seeking a higher classification of prisoners thereunder. Vide order dated 1st of Sept., 1980. the District Magistrate, on the basis of some report, cryptically allowed the petition for upper class in the Jail and directed the Jail Superintendent to act accordingly. It is averred that in pursuance of that order, the petitioners were granted the status of upper division prisoners and are enjoying the privileges and benefits ever since. However, by the impugned order dated the 8th October, 1985 (Annex. 4) the respondents issued directions to the Superintendents of all jails in Bihar that no prisoner in any case will get the benefit of upper division prisoner till the confirmation of the recommendation by the classifying authority, which, admittedly, is the State Government. It has been averred that the said impugned order has directly affected nearly 600 to 800 upper division prisoners all over the State, including the petitioners. Aggrieved thereby the present criminal writ petitions have been preferred.

(3.) In the counter-affidavit filed on behalf of the Respondent State, the broad factual position is not controverted. The stand taken is that under Rule 982, the State Government alone has the power to confirm any recommendation of a classifying authority, and, necessarily has got the power to suspend or to confirm any such recommendation. It is the stand that the recommendation for the higher classification is purely provisional till approved and confirmed by the State Government and vests no legal right in the petitioners nor does it amount to any deprivation of an accrued vested privilege. It is then averred that under Rule 982 the District Magistrates are not empowered to pass orders of a permanent nature and they are purely recommending authorities to the Government and cannot grant or confer a vested status of higher classification. The firm stand taken is that the orders of higher classification have been secured through manoeuvring and without first furnishing the copies of the judgments of conviction and without obtaining the confirmatory order of the Government, and, therefore, they cannot be allowed to continue ad infinitum and the writ petitions are thus neither maintainable nor meritorious.